Challenging Justices, disqualifying the Constitutional Court

2007 will be a year to remember in the history of the Spanish Constitutional Court. Not because of the last amendment of its regulatory law, which has changed the individual appeal process for the protection of fundamental rights and is supposed to put an end to the huge number of pending cases, but because of the ‘war of recusations’ against its members. This ‘war’ has been the result of politicians trying to use the Constitutional Court for defending their own political positions, and unfortunately those movements have made the Constitutional Court the last battlefield of the political fight. Nowadays, the Court seems to be divided into two clearly-defined blocks and it risks losing much of its prestige.

Challenging the Impartiality of Constitutional Justices

Article 159.5 of the Constitution disposes that the “members of the Constitutional Court shall be independent” and article 22 of the Constitutional Court Organic Law obliges the Constitutional Justices to “exercise [their] office according with the principles of impartiality and dignity.”

In general terms, to preserve the impartiality of ordinary judges in the discharge of their jurisdiction, the law establishes a closed list of grounds for disqualification. That is to say that in some situations an ordinary judge must disqualify (recuse him- or herself) from a case and if he/she does not do so, a party may challenge his or her impartiality. In the event that a Justice is recused, it is up to the rest of the Constitutional Court -sitting as a Full Court- to decide the case. In some cases, the Full Court has even declined to accept a Justice’s self-disqualification.

The Constitution did not establish the grounds for disqualification of Constitutional Justices. The Organic Law of the Constitutional Court does not include those grounds, but remits the issue to the general regime applicable to ordinary judges, which is included in article 219 of the Organic Law No. 6/1985 of the Judicial Power. So, in principle, the grounds for disqualification of Constitutional Justices are the same as those of the ordinary Judges. Nonetheless, the Constitutional Court long ago declared that the application of the grounds for disqualification to the Constitutional Justices do not operate unconditionally, but rather the interpretation and application of those grounds must be done in accordance with the specific nature of the Constitutional review process and the specific proceedings before that Court (for e.g., individual appeal for the protection of fundamental rights, conflicts of jurisdiction between territorial entities and conflicts of jurisdiction between constitutional bodies, see previous contribution).

Mutation of the Nature of the Constitutional Court

Article 159.2 of the Spanish Constitution states, “Members of the Constitutional Court shall be appointed among magistrates and prosecutors, university professors, public officials and lawyers, all of whom must have a recognized standing with at least fifteen years’ practice in their profession.” Nowadays 5 members are university professors, 5 are judges of the Supreme Court, 1 is lawyer and another is an attorney of the State Council (the highest legal Advisory Board of Spain). Some scholars oppose the recent parity reached between judicial and non-judicial members, which may transform the Constitutional Court into a court of last resort, forgetting its special nature. This is partly because individual appeals for the protection of individual rights take up more than 90% of the Court’s time, and make the Constitutional Court work and decide as an ordinary court.

If one analyses the series of decisions of the Constitutional Court starting last year with regard to Justices’ disqualification, the tendency towards an ordinary judges regime of disqualification regime is evident. Going deeper, the real issue is the progressive judicialization of the Constitutional Court, that is to say the progressive mutation of the Constitutional Court into a ordinary court of last resort. Members tend to consider themselves ordinary judges with the same statute as their colleagues sitting in Civil, Criminal, Administrative or Labor Courts.

As I have already pointed out, the Organic Law of the Constitutional Court refers to the general grounds for disqualification which consists of a number of causes that require a Justice to recuse him- or herself (abstention) and not take part in the case. And, if he or she does not do so, one of the parties may demand his or her disqualification through a challenge. Among the 16 causes of existing abstention and challenge provided for by article 219 of the Organic Law of the Judicial Power are, for example, bonds of marriage or another relationship between a judge and a party, being sanctioned because of a disciplinary proceedings initiated by one of the parties, or, finally, having a direct or indirect interest in the lawsuit.

Although the customary statement of the Constitutional Court in its decisions and judgments is that the general disqualification causes are modulated in their application to the Constitutional Justices and adapted taking into account the special nature of the Constitutional proceedings, it is really hard to see where any differences are in the application of the standard. One can see the progressive collapse of the Constitucional Justices with the ordinary judges. Usually, the Constitutional Court just automatically applies the regime for the disqualification of ordinary judges without any additional explanation.

Selected Decisions

An external observer will be particularly surprised by the great increase of motions challenging the Constitutional Justices in the last two years. But it is less surprising if we take into account that this period corresponds with an atmosphere of extreme political tension in the national Parliament and other political institutions. However, it is worrying that such an exceptional motion (as the challenging of a Constitutional Justice is) has become a usual action in Constitutional trials, especially in appeals against the alleged unconstitutionality of laws, where the parties are political bodies (for e.g., government, regional governments, Members of Parliament (MPs), etc.).

One of the problems usually mentioned by scholars, commentators and even in Constitutional Court Opinions is that Constitutional Justices cannot be substituted. Ordinary judges are automatically substituted if a motion of disqualification is accepted or if the court accepts the judge’s own petition. So, in the cases where a Constitutional Justice has been disqualified the Court must decide as Full Court without one of its members, which clearly affects a constitutional guarantee, the right to be heard by the judges predetermined by the law (article 24 of the Constitution). There exists then a limit to the motions of disqualification acceptance, indeed a minimum number, without which the Constitutional Court cannot work. This quorum is fixed in two thirds of the members (article 14 of the Organic Law of the Constitutional Court). Taking into account that the Court has 12 members, the minimum for the Court to sit is 8. It must be noted that when the Court receives a motion to disqualify, the member affected does not sit with his/her colleagues until this preliminary question is resolved.

Decision No. 383/2006. This decision dismissed the motion of disqualification submitted by a group of MPs against the President of the Constitutional Court in the long process of the appeal against the alleged unconstitutionality of the new Statute of the Autonomous Community of Catalonia (Application No. 8045-2006). The party submitting this motion argued that there was an appearance of impropriety since the President was married to a university professor who advised on the constitutionality of the Statute Proposal. The Constitutional Court sitting as Full Court dismissed the motion a limine, since the pretended disqualification was based on a nonexistent legal issue. One of the grounds for disqualification is a relationship, marital or otherwise, with one of the parties, but the President’s husband was at most an advisor (which is also dubious, since the “advice” was in fact an article published in a common book) but not a party. This decision has a concurrent opinion discussing procedural aspects.

Decision No. 394/2006. With this decision the Constitutional Court dismissed the motion of disqualification submitted by another party in the same case, application no. 8045-2006 (Statute of Catalonia Case). The government of Catalonia (Generalitat) and the regional parliament submitted a motion to disqualify a Justice because of his dissenting opinion in another case before the Constitutional Court, which, in fact, was the prelude of this case. The claimants argued that the Justice expressed disagreement with the Statute Proposal in his dissenting opinion. This attitude, following the reasoning of the claimants, corresponds with three of the causes enumerated in the grounds for disqualification. These causes can be summarized as follows: to have a direct or indirect interest in the lawsuit; to have participated as a member of a court of lower instance (when the final decision of that lower court is appealed to the court of which the justice in question is now a member); and to have acted in an office (as civil servant, e.g.) where he/she could have been informed of the proceedings facts or could have formed a previous opinion on the case. The Constitutional Court dismissed the motion, holding that to base a disqualification of a Justice in his previous opinion delivered as member of the Court is absolutely inadmissible. The rationale appeals to the case-law of the European Court of Human Rights to exclude jurisdictional activity as a possible way to exteriorize a personal opinion in a disqualifying motion proceeding.

Decision No. 380/2006. In this decision the Court sitting as Full Court dismissed a Justice’s self- recusation. The Justice founded his petition on the fact that the law firm where he acted as Partner-Director before being appointed to the Constitutional Court is currently defending one of the parties of the case from which this Justice wished to be disqualified. In a brief decision the Court dismissed the self-recusation because the Justice’s situation does not fit with any of the established grounds for disqualification.

Decision No. 456/2006. This case is similar to the prior one. One of the Justices sought his own disqualification because his son was attorney (procurador) of one of the parties, not in the Constitutional trial, but in a proceeding before ordinary courts. The decision from that proceeding was now being appealed before the Constitutional Court (the appeal was against the alleged unconstitutionality of a law lodged by the Supreme Court). The Constitutional Court dismissed the petition, holding that the participation of the Justice’s son was not before the Constitutional Court but the Supreme Court (another jurisdiction) and the parties before the Supreme Court do not have the same standing as parties before the Constitutional Court. Indeed, following the Court case law only the legal bodies enumerated in the law may act as parties before the Constitutional Court and not individuals (there is an exception to this rule, in the event of a “personal law,” a law that has been passed formally –with name and surname– for a concrete person).

Decision No. 26/2007. This is a very controversial decision and will certainly be broadly commented upon by scholars in the near future. It was delivered by the Constitutional Court in the framework of the Statute of Catalonia Case (application no. 8045-2006). For the first time and in what was essentially a tie vote (5 against 6) the Constitutional Court accepted a motion to disqualify a Justice, Prof. Perez Tremps, submitted by one of the parties. This decision, highly commented upon in newspapers and editorials, had in addition to the Opinion of the Court, 5 dissenting Opinions (each Justice voting against the disqualification wrote an own Opinion) and 2 concurring Opinions (one of them from the reporter himself). The Court finally accepted the motion of disqualification because it interpreted that a doctrinal article (published in a common book) written by the Justice challenged was a kind of indirect participation in the legislative process of the Statute of Catalonia. The majority interpreted that since the work was requested by an Academic Institution (organically independant from the Catalonian Government) as an expert report, and since this institution sent all its doctrinal work (including other works from other experts) to the Parliament at the time that the new Statute of Catalonia proposal was being discussed, and finally because the Statute included some (from the majority’s point of view, although this argument was never fully justified) proposals of this expert (then professor of Constitutional Law, now Constitutional Justice), he had participated indirectly in the legislative process of elaboration of the new Statute of Catalonia. This participation could be included –in the majority view– in cause No. 13 of the article 219 of the Organic Law of the Judicial Power (to have exercised office by which the judge had participated directly or indirectly in the matter submitted to the Court).

This is one of the cases where the dissenting Opinions are much better legally founded than the Court Opinion itself. The different dissenting Opinions argued that the conduct of the Justice could absolutely not be seen as a participation in the legislative process but was in the nature of ordinary work developed by university professors who are asked to write on their areas of expertise. Besides, the work of this Justice was a scientific, doctrinal work. This sort of work is part of the normal activity of university professors, for whom the main way to be recognized as an expert is to publish articles. It should be noted that the condition for being appointed a member of the Constitutional Court is to be a lawyer of recognized competence with at least 15 years of practice (article 159.2 of the Constitution). The means available to university professors to demonstrate such competence is to publish articles and books. This aspect is more or less also recognized by the Opinion of the Court but not taken into account. Another important aspect is that even if the work of the Justice (before being appointed to the Constitutional Court) could be considered as a Partial Report, advice defending a particular point of view, which is the main thesis of the majority, it is hard to see where there is the indirect participation in the legislative process. The academic institution (Instituto de Estudios Autonómicos) that asked him for the work is not a legal advisor of the Catalonian Government nor Parliament. It is an academic institution and not a governmental agency whose advice would be compulsory. But in my view the definitive argument against the disqualification of that Justice is that the constitutional review process is a proceeding of abstract control of the law. There is no private interest on it. No partiality can be argued. There could be only a public and general interest to purify, to debug the legal order purging the unconstitutional norms. All personal interests are irrelevant in such a process. The dissenting Opinions also mention that point, especially the one from Justice Aragon Reyes.

Decision 177/2007. This case is partially similar to the prior one and has some relation to it but the final decision is radically different. In the proceedings of the Statute of Catalonia Case (application no. 8045-2006) the Catalonian Government presented a motion for disqualification of a Justice who had also published a work for another academic institution (Carles Pi i Sunyer Foundation). In this case, however, the ten sitting Justices (all except the previously disqualified member, Justice Pérez Tremps, and the currently challenged one) adopted an unanimous Decision describing the conduct of the challenged Justice as a doctrinal work without incidence in the preparatory proceedings of the Statute of Catalonia.

There is another example of successive (and abusive) motions of disqualifications, preceded by two abstentions: one of the President and one of the Vice-president. This application before the Constitutional Court is No. 6729-2007, and it challenges the law reforming the Organic Law of the Constitutional Court which, among other things, sets the extent of the office of the President and Vice-President of the Constitutional Court. Due to the two self-recusations previously mentioned (President and Vice-President) the Full Court is composed only by 10 members. One party (a group of MPs who lodged the appeal of alleged unconstitutionality of this reform) has challenged three Justices and the other (the Government) two. At the time of writing, the Court had dismissed the motion for disqualifying three Justices. This motion could never have been accepted, since it would have reduced the members of the Full Chamber to 7 (the minimum to sit as Full Court is 8). The appellants declared (in the written memorandum appeal lodged before the Court) that they had challenged Justices just because the Government had first challenged two of them. The Constitutional Court in a currently unpublished Decision, besides dismissing the motion a limine, has criticized such behavior and, perhaps rethinking its previous Decisions regarding disqualification, has censured the motion on the grounds that its only aim was to respond to the motion submitted by the Government. Apart from this, the Court recognized that this motion lodged by the MPs attempted to change the composition of the Court without any basis. The Decision of the Court also criticized the unjustified use of the disqualification motion, a very serious and exceptional one, done by this party.

Concluding Remarks

One can say that these motions for disqualification respond to a moment of special tension in the political atmosphere which has unfortunately extended to the Constitutional Court. But it is also worrying to note that some members of the Constitutional Court seem to have forgotten the special legal nature of the Court on which they sit and instead are acting as ordinary judges. The Constitutional Court is more than a Court of last resort, it is one of the Constitutional Bodies itself. By way of the different proceedings it is entitled to hear, the Court has the highest duty to preserve the supremacy of the Constitution and not to defend a particular interpretation of the highest norm for the sake of a claimant motivated by a personal and private interest. Although the proceedings before the Court are contradictory, the Court does not take part for one party to the detriment of another (though in some trials, specially in the individual appeal there will be a part directly concerned by the final decision), but it takes the part of the Constitution itself. The only interest of the parties in a Constitutional trial is (in strictly legal terms) the objective preservation of the supremacy of the Constitution (which is to say the objective application of the Constitution) and the objective depuration or the legal order, expelling those laws opposed to the Constitution and overruling those judgments which violate the supreme interpretation of the Constitution performed by the Constitutional Court. Any other interest claimed by the parties is constitutionally irrelevant.